Rajeev S/o Baskaran v. GOPALAKRISHNA PILLAI (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945** **EX.SA NO. 26 OF 2015** **AGAINST THE JUDGMENT AND DECREE DATED 06.06.2015 IN AS 162/2007 OF** **SUB COURT, KOTTARAKKARA** **AGAINST THE ORDER DATED 15.11.2007 IN E.A.NO.307/2004 IN** **E.P.NO.25/2004 IN O.S.NO.185/1997 OF MUNSIFF COURT, KOTTARAKKARA** ## **APPELLANT/APPELLANT/CLAIM PETITIONER:** **RAJEEV S/O.BHASKARAN, AGED 52 YEARS, THULASI MANDIRAM, CHADAYAMANGALAM VILLAGE AND MURI, KOTTARAKKARA TALUK.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS/RESPONDENTS/DECREE HOLDER AND JUDGMENT DEBTOR AND ADDL.3RD RESPONDENT IMPLEADED IN A.S.NO.162/2007:** - **1 GOPALAKRISHNA PILLAI (DIED)* AGED 72 YEARS** **NEPHEW OF KUNJU PILLAI, VIJAYA BHAVAN, PUNNAMOODE, VARKALA VILLAGE, CHIRAYINKEEZHU TALUK, PIN-691 534.** **(*ADDITIONAL RESPONDENTS 4 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT AS PER ORDER DATED 21/10/2021 IN I.A.NO. 3/2018 IN EX.SA NO. 26/2015)** ## **2 PRASANNAKUMARI,** **AGED 52 YEARS, D/O.CHELLAMMA, ASWATHY, CHADAYAMANGALAM MURI, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK PIN-691 534.** ## **3 M.S.RAJALEKSHMI,** **W/O.HARIKUMAR, SIVA VILASOM VEEDU, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK, PIN-691 534.** **EX.SA NO. 26 OF 2015** **2** **ADDL.R4 PANKAJAKSHI, (DIED)*** **W/O.GOPALAKRISHNA PILLAI, AGED 80 YEARS, RESIDING AT VIJAYA BHAVAN, PUNNAMOODU P.O., VARKALA-695 141.** **(*ADDITIONAL RESPONDENTS 5 TO 8 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED FOURTH ADDITIONAL RESPONDENT AS PER THE ORDER DATED 24/02/2020 IN MEMO DATED 28/06/2019 IN EX.SA NO. 26/2015)** **ADDL.R5 AMMINI P.** **D/O. GOPALAKRISHNA PILLAI, AGED 60 YEARS, RESIDING AT MANJU SADANAM, JAWAHAR PARK, PUNNAMUDU P.O., VARKALA-695 141.** **ADDL.R6 VIJAYAMMA P.,** **D/O.GOPALAKRISHNA PILLAI, AGED 56 YEARS, RESIDING AT SNEHA THEERAM, PUNNAMUDU , VARKALA-695 141.** **ADDL.R7 THANKAMANI P.,** **D/O.GOPALAKRISHNA PILLAI, AGED 53 YEARS, RESIDING AT KEEZHOLIL VEEDU,POREADAM P.O., CHADAYAMANGALAM-691 534.** **ADDL.R8 SHIBU G., S/O.GOPALAKRISHNA PILLAI, AGED 48 YEARS, RESIDING AT VIJAYA BHAVAN, PUNNAMUDU P.O., VARKALA-695 141.** **BY ADVS.** **SMT.R.RAJITHA FOR R3 SRI.SANTHOSH P.PODUVAL FOR R3 SMT.VINAYA V.NAIR FOR R3 SRI.VYSAKH VIJAYAN FOR R3** **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EX.SA NO. 26 OF 2015** **3** ## **JUDGMENT** Dated this the 28[th] day of February, 2024 This Execution Second Appeal has been filed under Section 100 read with Order XXI Rule 58(4) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for convenience). 2. One Rajeev, who filed claim petition under Order XXI Rule 58 of CPC in E.P.No.25/2004 in O.S.No.185/1997 on the files of the Munsiff's Court, Kottarakkara, is the appellant herein and he assails the verdict of the appellate court in A.S.No.162/2007 as well as the verdict of the execution court in E.A.No.307/2004 in E.P.No.25/2004 in O.S.No.185/1997. Respondents are the decree holder as well as the judgment debtors. 3. Heard the learned counsel for the appellant/claim petitioner as well as the learned counsel appearing for the 3[rd] respondent/the subsequent purchaser of the property. No **EX.SA NO. 26 OF 2015** **4** others appeared. Perused the verdicts under challenge. 4. I shall refer the parties in this execution second appeal with reference to their status before the trial court. The appellant will be referred as “claim petitioner” and the respondents will be referred as “decree holder”, “judgment debtor” and “subsequent purchaser”. 5. Sri.Rajeev filed claim petition contending that he obtained title to the decree schedule property, on the strength of sale deed No.3485/1996 marked as Ext.A1 in the claim petition. According to the claim petitioner, after selling the property in favour of the claim petitioner on 11.08.1996, the decree holder and the judgment debtor created a sale agreement with back date, viz., 11.06.1996 marked as Ext.B1, (in the claim petition) and the same is void _ab initio_ . 6. The learned counsel appearing for the subsequent purchaser/3[rd] respondent placed reliance on Exts.B1 and B2 documents marked in appeal to beat the contentions and submitted that Ext.B1 produced in appeal is the decree in **EX.SA NO. 26 OF 2015** **5** O.S.No.138/2005 and the counter claim thereof. O.S.No.138/2005 is a suit filed by Rajeev, S/o.Baskaran, who is none other than the claim petitioner herein. As per Ext.B1, the learned Munsiff delivered the judgment as under: _“Plaintiff called absent. Defendants present. Filed affidavit. Exts.B1 to B7 marked. Hence suit dismissed with costs to the defendants and counter claim decreed allowing the following reliefs:-_ - _(1) The sale deed No.3485/96 of SRO Chadayamangalam is hereby set aside._ - _(2) The plaintiff is restrained from trespassing to the Plaint Schedule Property or committing any waste in it_ - _(3) To realise entire costs of litigation from the plaintiff.”_ 7. Relying on Ext.B1, the first appellate court found that since no challenge raised against the finding in Ext.B1, setting aside Ext.A1 sale deed relied on by the claim petitioner, the claim of the petitioner reiterating the contention raised in O.S. No.138/2005, is not at all sustainable. 8. On perusal of Ext.B1, it is crystal clear that the claim petitioner herein, as plaintiff, filed O.S.No.138/2005. In **EX.SA NO. 26 OF 2015** **6** the said proceedings, while dismissing the suit, counter claim raised by the other side was allowed and sale deed No.3485/1996, marked as Ext.A1 in the claim petition, was set aside. Since no challenge raised against Ext.B1 verdict, the claim petition could not succeed, as rightly found by the appellate court. Therefore, the concurrent verdicts do not require any interference. 9. In order to admit and maintain a second appeal, substantial question of law is to be formulated, as per the mandate of Order XLII Rule 2 read with Section 100 of CPC. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of_ **EX.SA NO. 26 OF 2015** **7** _section 100.”_ 10. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for **EX.SA NO. 26 OF 2015** **8** reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 11. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 12. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge** Bench) _,_ as under: **EX.SA NO. 26 OF 2015** **9** _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 13. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial _question of law” by suffixing the words “of general importance”_ as has been done in many other **EX.SA NO. 26 OF 2015** **10** provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 14. In this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the verdict under challenge do not require any interference and no substantial question of law to be formulated to adjudicate in this execution second appeal. 15. Accordingly, this execution second appeal stands dismissed, without being admitted, as indicated above. **EX.SA NO. 26 OF 2015** **11** 16. All interlocutory applications pending in this execution second appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr